IN RE: JEFF COOPER, Protestor.
Protest Decision 2005 ESD 24
Issued: November 8, 2005
OES Case No. P-05-016-100305-MW
Jeff Cooper, a member and business agent of Local Union 89, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). He alleged that Jeffboat LLC, an employer under contract with Local Union 89, discriminated against members engaging in campaign activities by barring vehicles displaying campaign stickers from the secured parking lot at the employer's facility.
Election Supervisor representative Joe F. Childers investigated this protest.
Findings of Fact
The protest asserted that, commencing September 29, 2005, the employer prohibited vehicles bearing campaign stickers from entering the secured parking lot at its Jeffersonville, Indiana, site.
Investigation showed that the employer's facility, including a small parking lot, lies within a fenced perimeter staffed by security personnel. The employer maintains several additional parking lots for its work force; these lots are not secured. All but one of the 700 members of Local 89 who work at the facility park in these unsecured lots.
The employer historically has permitted union representatives to park their vehicles in the secured parking lot when on union business, regardless of whether the vehicles bear campaign stickers or signs. Thus, the protestor, a business agent at Jeffboat since 2000, told our investigator that he always has been permitted to park his vehicle inside the secured area, with or without campaign stickers; such has also been the experience of Jim Kincaid, chief steward since 2003, and Kincaid's predecessor, Kyle Cochran. Fred Zuckerman, Local 89 president, states that the practice of permitting the chief steward to park inside the secured area dates back thirty years and has not been restricted when the car displayed campaign stickers. Aside from campaign stickers on vehicles, however, no evidence was presented that any other form of campaign activity has occurred in the secured parking lot. With one exception based on reasons unrelated to this protest, no Local 89 member other than the chief steward or business agent has been given a regular parking space in the secured parking lot.1 As a general matter, the secured parking lot was off limits to Local 89 members.
On September 29, 2005, chief steward Kincaid, who also was a candidate on the Zuckerman-Bolton slate in the delegate and alternate delegate election, sought to park his vehicle inside the secured area but was barred from doing so because the vehicle bore a large placard endorsing his slate. The employer's labor relations director, Stacey Barry, told our investigator that the employer took this action because the secured parking lot is inside the employer's work area and company policy prohibits campaigning in work areas. In addition, the Jeffboat-Local 89 collective bargaining agreement prohibits "Union activity in the yard, except as may be described in this Agreement," and the contract contains no exception for campaign stickers on employees' vehicles.
Brooke Egan, the employer's counsel, stated that prior to September 29, the employer did not examine vehicles that entered the secured parking lot for campaign stickers. However, when a complaint was lodged about Kincaid's placard, the company concluded that it violated the contract. Less than a week later, on October 5, the company implemented a new policy prohibiting all salaried and hourly employees from driving their personal vehicles into work areas, including the secured parking lot, regardless of the presence or absence of campaign stickers. This policy is also applied to Local 89 employees and representatives. The single exception to the policy is granted to Lloyd Harrod, who is permitted to drive his vehicle into the secured area to accommodate his disability; however, Harrod cannot do so if his vehicle displays campaign material.
Egan further stated that the company does not regulate vehicles bearing campaign stickers in the unsecured parking lots or visitor parking areas.
Analysis
Article VII, Section 11(a) of the Rules states, in relevant part:
All Union members retain the right to engage in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions. This includes, but is not limited to, the right to distribute campaign literature and otherwise solicit support for a member's candidacy outside a meeting hall, before, during or after a Union meeting, regardless of Union policy, rule or practice.
Article VII, Section 11(d) of the Rules states the following:
No restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity. Similarly, no restrictions shall be placed upon candidates' or members' preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on employer or Union premises. Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.
Here, the protestor submits that Jeffboat's action of September 29 and policy of October 5 violated the Rules, asserting that the employer discriminated against Kincaid because of his campaign activity. The employer's conduct will establish a Rules violation only if a pre-existing right exists to campaign in the secured parking lot.
A preexisting right of members to use employer premises for campaign activity is established by employer policy (Walter, 2001 EAD 525 (October 25, 2001); Berg & Corrigan, 2001 EAD 267 (March 26, 2001), aff'd, 01 EAM 61 (April 23, 2001)), or by past practice (Hoffa Unity Slate, 2001 EAD 539 (November 2, 2001); Brinkman, P151 (September 18, 1995, aff'd, 95 EAM 21 (October 10, 1995)).
Here, no pre-existing right of members to campaign in the secured parking lot is established by employer policy. To the contrary, the collective bargaining agreement bars "Union activity in the yard," and the unchallenged evidence is that the secured parking lot is within the "yard," as that term is used in the contract.
While the facts show that the employer did nothing before September 29 even to monitor whether cars entering the secured parking lot bore campaign stickers that could be construed as activity not allowed under the collective bargaining agreement, that does not establish a pre-existing right of members to enter the secured parking lot with cars displaying campaign material. The evidence establishes that the right the protestor claims here was available only to those Local 89 officials who had been granted access to the secured parking lot as a convenience in connection with their official activity. The practice could only be engaged in by those persons - the incumbent business agent and the chief steward - who historically have been permitted to park their vehicles in the secured parking lot. Thus, there was no practice showing that the Local 89 general membership equally could park cars bearing campaign stickers in the secured parking lot and so had a "preexisting right[] to solicit support … or engage in similar activities on employer premises" within the meaning of the Rules. Because the remainder of the work force has not been permitted to drive their vehicles into the secured parking lot, we are unable to conclude that members enjoy a pre-existing right to campaign in that area in the limited manner at issue in this case.
Our decision does not affect the right enjoyed by all members to park their vehicles, with or without campaign stickers, in the unsecured parking lots. Members' rights in this regard are protected by the Rules and are not challenged by the employer.
Accordingly, we DENY the protest.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Supervisor in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2005 ESD 24
1. One Local 89 member has been allowed to park in the secured parking lot as a reasonable accommodation for a disability.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
pszymanski@teamster.org
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
braymond@fwslaw.com
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Jeff Cooper
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
jscoupe@teamsters89.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fzuckerman@teamsters89.com
Robert Colone
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
rmcolone@teamsters89.com
David Thornsberry
785 Kingswood Drive
Taylorsville, KY 40071
davidthorny@msn.com
United Rank & File Slate
P.O. Box 991175
Louisville, KY 40269-1175
Rankandfile2005@msn.com
Ann Curry Thompson
Kelman Loria, PLLC
660 Woodward Avenue, Suite 2300
Detroit, MI 48226
acthom@kelmanloria.com
Brooke Egan, Corporate Counsel
Jeffboat LLC
1030 East Market Street
Jeffersonville, IN 47130-4330
Brooke.Egan@acbl.net
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com